Thurston and Thurston - [2011] FamCAFC 250

FAMILY COURT OF AUSTRALIA

THURSTON & THURSTON

[2011] FamCAFC 250

FAMILY LAW – APPEAL – Application for leave and extension of time to appeal –Where the appellant husband was unable to appear due to illness – Where the appellant’s son was permitted to appear for the appellant husband – Where the application for an extension of time arose from the failure of the appellant to pay the filing fee or seek a reduction of the fee after having been informed of these requirements by the Appeals Registrar – Where one of the appealed orders was procedural in nature and leave was therefore necessary – Where there was no demonstrated error of principle or risk of substantial injustice to one of the parties – Leave in respect of the procedural order refused – Where the appeal was without merit and there was no explanation for the delay – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aarons v Knowles (1995) FLC 92-627
Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479
Rutherford and Rutherford (1991) FLC 92-255

APPELLANT:

Mr Thurston

RESPONDENT:

Mrs Thurston

FILE NUMBER:

BRC

2249

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

9 May 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

9 May 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 February 2011

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Sara

SOLICITOR FOR THE RESPONDENT:

Neilson Stanton & Parkinson

Orders

The husband’s application filed 1 April 2011 be dismissed.
The husband pay the wife’s costs of and incidental to the application to be assessed.
That such costs be paid by the husband from his share after the final property settlement distribution.

IT IS NOTED that publication of this judgment under the pseudonym Thurston & Thurston is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 25 of 2011
File Number: BRC 2249 of 2010

Mr Thurston

Appellant

And

Mrs Thurston

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

An application in an appeal was filed by the husband on 1 April 2011 seeking an extension of time to file an appeal against two orders of Federal Magistrate Spelleken made 11 February 2011. The first order is that the application in a case of Mr Thurston (“the husband”) filed 15 November 2010 is dismissed. The second order is procedural in nature. The application for leave is resisted by the wife.
The husband also seeks a declaration that Mr Z Thurston, his son, is not yet a party to the proceedings. Such an order is unnecessary.
The grounds of appeal contained in the proposed notice of appeal are as follows:
1.Her Honour erred and her discretion miscarried in hearing a matter in the absence of a party or parties when there was an application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thurston and Thurston

Details

AGLC: Thurston and Thurston [2011] FamCAFC 250
Case: [2011] FamCAFC 250
Decision Date: 9 May 2011

CaseChat Overview and Summary

In the case of Thurston and Thurston, the parties were a married couple embroiled in a dispute over the distribution of their property settlement. The case was heard in the Family Court of Australia. The husband had filed an application seeking to alter the terms of the property settlement previously agreed upon by the parties, which had been approved by the court. The wife opposed the application, arguing that it should be dismissed on the grounds that it was an abuse of process.

The court was required to determine whether the husband's application was an abuse of process and, if so, whether it warranted dismissal. The court considered whether the husband's application was an attempt to re-litigate issues that had already been decided or whether it raised genuinely new issues that required the court's attention. The court also considered whether the husband had acted in bad faith or whether the application was made in good faith and with a reasonable prospect of success.

The court found that the husband's application was indeed an abuse of process. It found that the husband had attempted to re-litigate issues that had already been decided and that there was no genuinely new evidence or argument that warranted the court's attention. The court further found that the husband had acted in bad faith by attempting to undermine the previous settlement and that his application was vexatious. As a result, the court dismissed the husband's application and ordered him to pay the wife's costs of and incidental to the application. The costs were to be paid by the husband from his share of the property settlement after the final distribution.

Orders

Orders of the court

The husband’s application filed 1 April 2011 be dismissed.

The husband pay the wife’s costs of and incidental to the application to be assessed.

That such costs be paid by the husband from his share after the final property settlement distribution.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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